8 Amendments of Joachim SCHUSTER related to 2016/0351(COD)
Amendment 9 #
Proposal for a regulation
Recital 2
Recital 2
(2) Articles 2(7)(a) and 2(7)(b) of Regulation (EU) 2016/1036 stipulate the basis on which normal value should be determined in the case of imports from non-market economy countries. In view of developments with respect to certain countries that are Mmembers of the WTO, it is appropriate that, for those countries, normal value should be determined on the basis of paragraphs 1 to 6a of Article 2 of Regulation (EU) 2016/1036, with effect from the date on which this Regulation enters into force, and subject to the provisions of this Regulation. In the case of countries which are, at the date of initiation, not Members of the WTO and listed in Annex I of Regulation (EU) 2015/7552 , norma1 value should be determined on the basis of paragraph 7 of Article 2 of Regulation (EU) 2016/1036, as amended by this Regulation. This Regulation should be without prejudice to establishing whether or not any WTO Member is a market economy. Furthermore, it should be without prejudice to the terms and conditions set out in protocols and other instruments in accordance with which countries have acceded to the Marrakesh Agreement establishing the World Trade Organisation. _________________ 2 Regulation (EU) 2015/755 of the European Parliament and of the Council of 29 April 2015 on common rules for imports from certain third countries (OJ L 123, 19.5.2015, p. 33).
Amendment 13 #
Proposal for a regulation
Recital 3
Recital 3
(3) In the light of experience gained in past proceedings, it is appropriate to clarify the circumstances in which significant distortions affecting to a considerable extent free market forces may be deemed to exist. In particular, it is appropriate to clarify that this situation may be deemed to exist, inter alia, when reported prices or costs, including the costs of raw materials, are not the result of free market forces because they are affected by government intervention. It is further appropriate to clarify that in considering whether or not such a situation exists regard may be had, inter alia, to the potential impact of the following: the market in question is to a significant extent served by enterprises which operate under the ownership, control or policy supervision or guidance of the authorities of the exporting country; state presence in firms allowing the state to interfere with respect to prices or costs; public policies or measures discriminating in favour of domestic suppliers or otherwise influencing free market forces; and access to finance granted by institutions implementing public policy objectives. It is further appropriate to provide that the Commission services may issue a report describing the specific situation concerning these criteria in a certain country or a certain sector; that such report and the evidence on which it is based may be placed on the file of any investigation relating to that country or sector; and that interested parties should have ample opportunity to comment on the report and the evidence on which it is based in each investigation in which such report or evidence is used. and other factors of production, are not the result of free market forces because they are affected by government intervention, or when there is a situation of overcapacities 1a. It is further appropriate to clarify that in considering whether or not such a situation exists regard should be had, inter alia, to the potential impact of the following: government influence over the allocation of resources and decisions of enterprises, whether directly or indirectly (e.g. public bodies), for example through the use of state-fixed prices, or discrimination in the tax, trade or currency regimes; state- induced distortions in the operation of enterprises linked to privatisation and the use of non-market trading or compensation system; the lack of a transparent and non-discriminatory company law which ensures adequate corporate governance (application of international accounting standards, protection of shareholders, public availability of accurate company information); the lack of a transparent and effective set of laws that prevents the respect of property rights and the operation of a functioning bankruptcy regime; the lack of a genuine financial sector which operates independently from the state and which in law and practice is subject to sufficient guarantee provisions and adequate supervision; wage rates are not the result of free bargaining between labour and management; the absence of a transparent set of laws produces discriminatory effects with regards to joint-ventures and other foreign investments and access to finance granted by institutions implementing public policy objectives; the lack of ratification and of correct implementation of core International Labour Organisation (ILO) Conventions and of Multilateral Environmental Agreements (MEA) to which the Union is party; the non- compliance with the relevant OECD recommendations pertaining to the field of taxation (e.g. the BEPS initiative); and any other circumstance the Commission considers appropriate in order to evaluate the existence of significant distortions. For indicative purposes, a detailed list of the examples of significant distortions is available in the Annex. That list should be updated after each case. The existence of one or more significant distortions in the economy as a whole or in one or several sectors of the economy of the exporting country should lead automatically to the use of undistorted third country, international or Union prices, costs or benchmarks for each and every factor of production in the construction of the normal value, as well as to the disapplication of the lesser-duty rule for the calculation of the anti-dumping duty to be imposed on imports from exporting producers from that country. In the absence of undistorted third country or international costs or benchmarks, the Commission should determine the normal value on any other reasonable basis, including on the basis of relevant prices and costs in the Union. This is especially the case where a significant portion of the complaining industry is made up of SMEs. The reliability of the costs and prices of a given factor of production to be considered undistorted should be assessed, inter alia, by reference to the quantities involved, their proportion in relation to the total costs of that factor, and actual use in production. Under this methodology, the burden of proving the absence of significant distortions on every factors of production falls on the exporting country's producers. If an exporting producer from a country where one of more significant distortions exist conclusively demonstrates at an early stage of the investigation that the costs of one or more of its factors of production are not distorted, those individual factors of production costs should be used in the construction of the normal value, without prejudice to the use of undistorted third country, Union or international prices, costs or benchmarks for those individual factors of production that are significantly distorted. It is further appropriate to provide that the Commission services should, at their own initiative or on the request of the European Parliament, of a Member State or of the Union industry (including Trade Unions and SMEs), issue a report describing the specific situation concerning these criteria in a certain country (departing from horizontal country distortions and then focussing on factors of production and sector distortions) or a certain sector; for those countries for which a substantial number of anti-dumping cases have been recorded, the report should be completed three months before the entry into force of this Regulation and adopted fifteen days within its entry into force. Union industry, including Trade Unions and SMEs, should be consulted during the report drafting process. When drafting a report, the Commission shall coordinate with the Union's major trading partners. Such report and the evidence on which it is based may be placed on the file of any investigation relating to that country or sector; interested parties should have ample opportunity to comment on the report and the evidence on which it is based in each investigation in which such report or evidence is used. In accordance with its role, the European Parliament is to monitor the report drafting process. On the request of the European Parliament, of a Member State, of the Union industry (including Trade Unions and SMEs) or in the case of a change of circumstances in a specific country or sector, the Commission should adopt a specific report or update an existing one. In any event, the Commission should carry out a review of the report every two and a half years. _________________ 1a Overcapacities are defined when the commercial surpluses start being structural without any comparative advantage in the country, when domestic prices and costs are lower than the prices in the world market or when investments in new production capacities are realised in discordance with a growing commercial surplus
Amendment 31 #
Proposal for a regulation
Recital 4
Recital 4
(4) It is further appropriate to recall that costs should normally be calculated on the basis of records kept by the exporter or producer under investigation. However, where there are one or more significant distortions in the exporting country with the consequence that costs reflected in the records of the party concerned are artificially low, such costs may be adjusted orshould be established on any reasonable basis, including information from other representative markets or from, from markets in the Union or from undistorted international prices or benchmarks. In the light of experience gained in past proceedings, it is appropriate to further clarify that, for the purposes of applying the provisions introduced by this regulation, due account should be taken of all relevant evidence, including relevant assessment reports regarding the circumstances prevailing on the domestic market of the exporting producers and the evidence on which they are based, which has been placed on the file, and upon which interested parties have had an opportunity to comment. In applying the rules, it is essential, in order to maintain the balance of the rights and obligations which the WTO and its Agreements and Protocols establish, that the Union take account of how they are interpreted, and applied by the Union's trading partners.
Amendment 46 #
Proposal for a regulation
Article 1 – paragraph 1 – point 1
Article 1 – paragraph 1 – point 1
Regulation (EU) 2016/1036
Article 2 – paragraph 6a – point a
Article 2 – paragraph 6a – point a
(a) In case it is determined, when applying this provision or any other relevant provision of this Regulation, that it is not appropriate to use domestic prices and costs in the exporting country due to the existence of one or more significant distortions in the economy or in one or several sectors of the economy, the normal value shall be constructed on the basis of costs of production and sale reflecting undistorted prices or benchmarks. For this purpose, the sources that may be used include undistorted international prices, costs, or benchmarks, or corresponding costs of production and sale in an appropriate representative country with a similar level of economic development as the exporting country, provided the relevant cost data are readily available. The constructed normal value shall include a reasonable amount for administrative, selling and general costs and for profits. for each and every factor of production, and the lesser-duty rule shall not apply for the calculation of the anti-dumping duties to be imposed on imports from the exporting producers from that country. For this purpose, the sources that may be used include: – corresponding costs of production and sale in an appropriate representative producer country where the prices and costs concerned by the investigation are the result of free market forces, including those in the Union or – if considered inappropriate by the Commission, undistorted international prices, costs, or benchmarks, provided the relevant cost data are readily available. The constructed normal value shall include a reasonable amount for administrative, selling and general costs and for profits. In the absence of undistorted international or third country costs or benchmarks, the Commission shall determine the normal value on any other reasonable basis, including on the basis of relevant prices or costs in the Union. This is especially the case where a significant portion of the complaining Union industry is made up of SMEs. The reliability of the costs and prices of a given factor of production to be considered undistorted shall be assessed, inter alia, by reference to the quantities involved, their proportion in relation to the total costs of that factor, and actual use in production. Under this methodology, the burden of proving the absence of significant distortions on every factors of production falls on the exporting country's producers. If an exporting producer from a country where one or more significant distortions exist conclusively demonstrates that the costs of one or more of its individual factors of production are not distorted, those individual factors of production costs should be used in the construction of the normal value, without prejudice to the use of undistorted third country, Union or international prices, costs of benchmarks for those individual factors of production that are significantly distorted.
Amendment 81 #
Proposal for a regulation
Article 1 – paragraph 1 – point 1
Article 1 – paragraph 1 – point 1
Regulation (EU) 2016/1036
Article 2 – paragraph 6a – point c
Article 2 – paragraph 6a – point c
(c) When appropriateAt their initiative or on the request of the European Parliament, of a Member State of or the Union industry (including Trade Unions and SMEs), the Commission services mayshall issue a report describing the specific situation concerning the criteria listed in point (b) in a certain country or a certain sector. Such report and the evidence on which it is based may be placed on the file of any investigation relating to that country or sector. Interested parties shall have ample opportunity to supplement, comment or rely on the report and the evidence on which it is based in each investigation in which such report or evidence is used. The determinations made shall take into account all of the relevant evidence on the file. (departing from the horizontal country distortions and then focussing on factors of production distortions and sector distortions) or a certain sector. For those countries for which a substantial number of anti-dumping cases have been opened, the report shall be completed three months before the entry into force of this Regulation and adopted fifteen days within its entry into force. The Union industry, including Trade Unions and SMEs, shall be consulted during the report drafting process. When drafting a report, the Commission shall coordinate with the Union's major trading partners. Such report and the evidence on which it is based may be placed on the file of any investigation relating to that country or sector. Interested parties shall have ample opportunity to supplement, comment or rely on the report and the evidence on which it is based in each investigation in which such report or evidence is used. The determinations made shall take into account all of the relevant evidence on the file. In accordance with its role, the European Parliament shall monitor the report drafting process. On the request of the European Parliament, of a Member State, of Union industry - including Trade Unions and SMEs - or on the Commission's own initiative when the circumstances in a specific country or sector have changed, the Commission shall adopt a specific report or update an existing one. In any event, the Commission shall carry out a review of the report every two and a half years.
Amendment 97 #
Proposal for a regulation
Article 1 – paragraph 1 – point 1
Article 1 – paragraph 1 – point 1
Regulation (EU) 2016/1036
Article 2 – paragraph 6 a – point d
Article 2 – paragraph 6 a – point d
(d) The Union industry may rely on the report referred to in point (c) for the calculation of normal value when filing a complaint in accordance with Article 5 or a request for a review in accordance with Article 11 or in a request for reinvestigation in accordance with Article 12. When the conclusions of the report show the existence of one or more significant distortions, the report pursuant to the paragraph 6 (b) shall constitute sufficient evidence in order to justify the calculation of the normal value pursuant to the methodology referred to in subparagraph (a). In any event, no additional burdens shall be requested from the Union industry. In the absence of a report, the Commission shall use any available information or data to establish the existence of significant distortions and use the methodology referred to in subparagraph (a) if the relevant requirements are met. A helpdesk and special mechanisms (e.g.: free legal advice, explicit user-friendly guidelines, especially regarding confidentiality rules) are put in place in order to help SMEs in the process of making use of the reports and filing complaints.
Amendment 113 #
Proposal for a regulation
Article 1 – paragraph 1 – point 1
Article 1 – paragraph 1 – point 1
Regulation (EU) 2016/1036
Article 2 – paragraph 6 a – point e
Article 2 – paragraph 6 a – point e
(e) The parties to the investigation shall be informed shortly after initiation about the relevant sources that the Commission intends to use for the purpose of point (a) and shall be given 10 working days to comment. For this purpose, interested parties shall be given access to the file, including any evidence on which the investigating authority relies, without prejudice to Article 19. A disclosure regarding the methodology to be used shall be communicated to the parties no later than three months from initiation of the investigation.
Amendment 115 #
Proposal for a regulation
Article 1 – paragraph 1 – point 1
Article 1 – paragraph 1 – point 1
Regulation (EU) 2016/1036
Article 2 – paragraph 6 a – point e a (new)
Article 2 – paragraph 6 a – point e a (new)
(ea) During the investigations phase, in case of less than full cooperation by an exporting producer from a country in which one or more significant distortions are deemed to exist, and without prejudice to the application of Article 18, the lesser- duty rule shall not apply for the determination of the anti-dumping duties to be imposed on imports from that exporting producer